Asigera v Irara [2011] SBHC 37; HCSI-CC 108 of 2003 (31 May 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Civil Case No: 108 of 2003

BETWEEN:

ASKELON ASIGERA
First Claimant

AND:

AROSI VISION LINK SERVICES
Second Claimant

AND:

BULACAN INTERNATIONAL (SI) COMPANY LIMITED
Third Claimant

AND:

PETER IRARA
First Defendant

AND:

GOLDEN GISA
Second Defendant

AND:

ARAM PWARONGO
Third Defendant

AND:

AGRIPA MONO
Fourth Defendant

Date of Hearing : 20 April 2011
Date of Ruling : 31 May 2011

R.Kingmele for the Claimants
G K Fa'aitoa for the Defendants

RULING

Mwanesalua J:

1. This is an application by the Defendants filed on 26 November 2010 seeking the following three alternative orders: (1) An Order that the claimants' action be dismissed for want of prosecution pursuant to Rule 9.13 of the Solomon Islands (Courts) Civil Procedure Rules 2007 ("the Rules"); or (2) A determination on a question of law - whether the Customary Ownership of the Land otherwise known as Hanegai Land to the Claimants or Maetawa Land to the Defendants has been settled by the relevant Native court so that the issue of customary ownership is res judicata; or (3) An Order for further directions. The Defendants also seek (4) costs and (5) such further or other orders.
   
2. The Defendants seek to dismiss the action on the grounds that the claimants had adjourned the pre-trial conference set for 5 May 2010; had adjourned the pre-trial conference set for 15 June 2010; Stood down the matter because it would not be possible for the court to determine the legal issues because the parties did not all agree on the facts; and had adjourned the pre-trial conference set three weeks from 1 July 2010.
   
3. The Claimants opposed this application. They submit that the Defendants' application must fail because the Defendants did not establish that the claimants have failed to take a step in the proceeding as required by Rule 9.13 of the Rules; there was no order by the court requiring them to propose a settlement of the action to the Defendants; and that both parties were obliged to explore settlement as the Defendants also have a counterclaim against the claimants.
   
4. Rule 9.13 specifically governs the dismissal of proceedings for want of prosecution which is in these terms: "9.13 A defendant in a proceeding may apply to the court for an order dismissing the proceeding for want of prosecution if the claimant: (a) is required to take a step in the proceeding required by the rules, or to comply with an order of the court not later than a particular time; and (b) does not do what is required before the end of that time".
   
5. The general principles governing the power to dismiss action for want of prosecution in this jurisdiction were considered by the High Court in Tang v Lo (No.1)[1] and more recently in Quarter Enterprices PTY Ltd v Allardyce Lumber Company Ltd [2]. These cases approved and applied the principles governing the power to dismiss as stated by Lord Diplock in Birket v James [3] wherein he stated as follows: "The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party".
   
6. The claimants were granted the adjournments in order to peruse documents in a file which they have recently found which may be relevant to their case; to enable the parties to agree the issues to be determined by the court; to agree facts; and to have discussions which may lead to a settlement of the action. It seemed that the parties agreed to the adjournments and for the reasons given to the court by the claimants. Both parties have interests in pursuing discussions with the view of possibly reaching a settlement as the Defendants also have a counter claim in the action.
   
7. There is no evidence to show that the claimants have failed to take any specific step in the action as required by the Rules, nor, was there any evidence of breach of any peremptory order of the court. The Defendants did not specifically advance inordinate and inexcusable delay to strike out the action in their application.
   
8. The second alternative order sought involves the determination of a point of law. That is whether the customary ownership of Hanegai or Maetawa customary land has been decided and settled by the relevant Native Court, thus raising the issue of res judicata. The referral of such preliminary point of law requires the filling of a special case to this court pursuant to Rule 16.75 of the Rules. The Defendants have not complied with the filing process required by that Rule. This court therefore does not have all the relevant information and documents to determine that point of law in this Application.
   
9. The third alternative order sought by the Defendants is an order for further directions. This third order has merits and one which this court will grant.
   

Order:

1. Order to dismiss this action for want of prosecution refused.
   
2. Order to determine whether customary ownership of Hanegai or Maetava customary land is res judicata is refused.
   
3. Registrar to set an appropriate date in June 2011 for further direction and/or pre-trial conference.
   
4. The Defendants to pay the claimants' costs of $4,200.00 to this application on standard basis.
   

THE COURT

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^[1] [1982] SBHC 16
^[2] [2009] SBCA 15
^[3] [1978] AC 297